G.G. Dear Professor v. Hirsch, the first question of our interview concerns the relationship between criminal law and philosophy, because you have been working for many decades on analytic ethics and its connections with criminal law.
A.v.H. Well, essentially if you use concepts like wrongfulness and culpability, all these kinds of concepts are morally loaded; or for example the limits of prevention, the limits of utilitarian aims, all that, you can only deal with it through English analytical philosophy.
G.G. English analytical philosophy… so no continental philosophy… we might disappoint our friends here [in Germany]!
A.v.H. [Laughing] I just came from Cambridge, from a meeting, it was the 40th anniversary of Doing Justice. If you read Doing Justice, the arguments used there come largely from analytical philosophy.
G.G. You are a proponent of a liberal approach in criminal law. You emphasize the moral autonomy of the individual and the proportionality between crime and punishment.
A.v.H. Οf course.
G.G. Now we are experiencing a massive counterattack of preventive criminal law.
A.v.H. Times are bad!
G.G. What defense can your approach provide against this massive counter attack of prevention? Ι have read a new article of yours, in which you are proposing some constitutional constraints in cases of gross disproportional punishment.
A.v.H. Yes, indeed. As you see, many of the main constraints on punishment, for example regressive proportionality, are non-constitutional principles, they are based on analytical arguments.
G.G. That will be our next question. You are not very satisfied with the fact that Germans work a lot with the Verhältnismäßigkeitsprinzip (means-ends-proportionality-principle). Why are you not satisfied with this kind of solution?
A.v.H. Ιt answers a different question. Verhältnismäßigkeitsprinzip (means-ends-proportionality-principle) is a forward-looking proportionality. If you want to shoot a mosquito, don’t use a shot gun; that is the argument. If you try to prevent people from committing petit crimes, you shouldn’t lock them up for life.
G.G. All right, but in Germany, apart from the Verhältnismäßigkeitsprinzip (means-ends-proportionality-principle), we have the Schuldprinzip (principle of culpability). The Germans claim that the Schuldprinzip (principle of culpability) is, from a normative point of view, stronger than the Verhältnismäßigkeitsprinzip (means-ends-proportionality-principle), because the security measures are (only) limited by the Verhältnismäßigkeitsprinzip (means-ends-proportionality-principle), while the penalties are limited by this principle and further limited by the Schuldprinzip (principle of culpability). What is your opinion about the “Schuldprinzip” (principle of culpability)?
A.v.H. The Schuldprinzip (principle of culpability) is the essential principle. All the theories that I use stem from the Schuldprinzip (principle of culpability). You should punish proportionally to the Schuld-degree (degree of culpability) of the person.
G.G. Is the principle of proportionality (between crime and punishment) a kind of extension, a kind of implementation of the Schuldprinzip (principle of culpability)?
A.v.H. It’s a direct application… and a wider application too. For example, according to the principle of proportionality (between crime and punishment), you should not only punish if somebody is guilty, but you should also only punish in proportion to the degree of culpability.
G.G. So the principle of proportionality between crime and punishment is not the same with the forward-looking Verhältnismäßigkeitsprinzip (means-ends-proportionality-principle)?
A.v.H. The Verhältnismäßigkeitsprinzip (means-ends-proportionality-principle) is a correct principle but it has another function. For example, suppose somebody finds out that a certain type of minor crimes is a good predictor of major crimes you might commit later. Then the Verhältnismäßigkeitsprinzip (means-ends-proportionality-principle) says fine, because after all the response is proportionate to the importance of what you prevent. The Schuldprinzip (principle of culpability) says no, because you committed only minor crimes and therefore, according to the principle of proportionality (between crime and punishment), you can’t be punished severely for your less serious crimes and convictions, and what you are going to do in the future doesn’t count. So they are different principles, and my view is that the principle of proportionality, which is an implementation of the Schuldprinzip (principle of culpability), is a completely limiting principle.
G.G. As we know, you are the main founder of the just desert model. After 40 years of gathered experience, do you think that there are certain jurisdictions for which the implementation of the just deserts model could be thought as more appropriate? I am also asking because of Greece – could an eventual integration of that model in our penal system have undesirable results?
A.v.H. That’s an interesting question. First of all, it’s only advisable to try to implement this model in places that are willing to abide by its basic principles, obviously. For example, if you try to implement this during the Obristenzeit (military junta), what you do is… you have a monstrosity. Because, remember, the desert principle has also restraints on how severe the whole penalty scale is. So if you try this model where they don’t have these restraints and where they want to boil everybody in hot oil, then it’s a mistake, don’t try it, don’t apply it there. That’ s very clear, and that’s the basic thing!
Another example is the English bill of rights. There was a proportionality principle there. The proposal was – I don’t remember exactly how the provision was – “the punishment should be proportionate to the seriousness of the crime”. But then it was added that “the punishment should be proportionate to the seriousness of the crime and the need for deterrence of the crime”. That changed the whole meaning.
Secondly, you have to be in a place where the legislators are liberal enough, because desert theory is a liberal theory and so you need people willing to implement it.
G.G. Ok, let’s turn to another point then. In the last years we have experienced a revival of rehabilitation. Surveys show that finally “something works”, rehabilitation is capable of reducing recidivism to a certain percent. If the treatment period doesn’t get in conflict with the proportionality principle and everybody has a free choice to take part in the treatment programs, do you think that this “new rehabilitation” complies with just deserts?
A.v.H. There is greater enthusiasm now, but the results haven’t changed. There is one article on the effectiveness of penal intervention [Anthony Bottoms & Andrew von Hirsch, ‘The crime-preventive impact of penal sanctions’, in The Oxford Handbook of Empirical Legal Research, 2010, pp. 98-124]. That was in 2010, and at the time it showed that there are onsets of wonderful programs, and if you run them on an experimental basis with very committed personnel, they will have some effect. And then, if you are wrong about the prison system or you have much less friendly offenders and much less friendly guards or treatment personnel, then they flop. Could we all live well on taking champagne, good champagne, good steak? But we cannot give most people champagne! That’s problem one. And, even if we could, there is problem two: especially with rehabilitation, there is always the problem of changing the sentence too much. For example, if you give somebody rehabilitation during his time in prison which doesn’t alter the severity of punishment, that doesn’t change it at all – this is spelled out in the book I wrote with Ashworth [Andrew von Hirsch & Andrew Ashworth, Proportionate Sentencing: Exploring the Principles, 2005] – we say, if you do that, that’s fine! But if you alter the severity of the sanction on rehabilitation grounds and alter it for some offenders but not for others, then you have a problem. Desert theory doesn’t need to take any particular stand on whether rehabilitation works. By the way, does medicine work? Medicine works now on some people and not on many others!
G.G. In Greece, as in Germany, there remains up to now the double track sentencing system, which consists of penalties and measures of security.
A.v.H. A very simple answer coming!
G.G. Is it up-to-date?
A.v.H. Νo it’s not up-to-date, it should be abolished, it should have never been imposed, it’s totally inconsistent!
G.G. Isn’t it a kind of doublespeak, a tricky way to bypass constitutional principles? I mean that a new sanction form was “invented”, to which the core of our criminal law doesn’t apply, because it’s called “security measure” and not “penalty”…
A.v.H. Τhe point is, if it is just “blah-blah”, then it’s not forbidden by just desert, it is forbidden by the “basic criminalization principle”. According to this principle, a purely preventive system is not justified at all.
G.G. So, do you think that the double track system was from the beginning a wrong choice?
A.v.H. Yes, absolutely!
G.G. Another question that is crucial for a reform of the Greek sentencing system concerns the role that substantial justice could have in a just desert system. In your book with Professor Ashworth, in an Appendix, you have listed some equity factors. Are equity factors compatible with just desert?
A.v.H. Some of them, you may be able to justify them on desert, and some of them are straightforwardly derogations from desert. For example, if a person suddenly becomes very sick and you let him or her go, then you would argue that the reason is because the sentencing has become more severe.
G.G. Is this what Germans call Strafempfindlichkeit (sensititivity to punishment)?
A.v.H. It’s an extreme form of it. But general Strafempfindlichkeit (sensititivity to punishment), absolutely no. A crucial thing is that both the seriousness of the crimes and the severity of punishment are based on the living standards analysis, they are based on the standard case. I mean that A, who is a claustrophobic, shouldn’t get less, and B, who is claustrophiliac, shouldn’t get more.
G.G. And what if somebody suffers from cancer or AIDS?
A.v.H. Well, that’s easy. If you have those things, they make the punishment much more severe. There are cases in which the punishment is manifestly more severe. In these, cases, you have to let the person go in order to observe proportionality, otherwise the punishment would become disproportionate.
G.G. Ιn your common book with Professor Ashworth you criticize with plausible arguments the “Bernard case”, in which it was held that the recognition of equity factors depends on the judge. Would you like to comment that? Why shouldn’t equity be an act of discretion anymore, as it traditionally was? And how equity per se turned out to be codified law, instead of being the judiciary correction of (problematic) codified law? I am referring to the list of equity factors included in the desert-orientated Swedish Criminal Code.
A.v.H. That’s what Shakespeare said in The Merchant of Venice: “Mercy is not strained”. But that’s… nonsense. If equity factors depended on the judges, then either the weakest and the sentimentalists would impose weak-neat sentences, or the “Trumpists” would impose very hard sentences, because… that is what the judge feels! The problem is, if he wants to do what he feels, then he should have become an actor [laughing] and not a judge! The virtue, in that case, of mercy should be constrained to the appropriate cases.
For example, you can see in England how badly it works if it is left to the judge. Some offenders get out, because they hold a medal for some sort of bravery or they were very obedient to a sergeant once. These factors have of course nothing to do with desert. What you have to do with equity factors is to maintain a punishment system basically guided by law and not an individual decision based on the seeming breathiness of the person. You don’t want breathiness grounds, e.g. that one has a good character or record, or has helped one’s country by investing in real estate, etc.
G.G. I would like your opinion about another approach to the desert principle, the “limiting retributivism”, which is supported by M. Tonry, N. Morris and R. Frase. How can we discern this theory from the German Spielraumtheorie?
A.v.H. It is the Spielraumtheorie! But what can be done is what I call the “modified desert model”.
G.G. Do you mean your theory about the acceptance of limited deviations from desert up to 10% or 15% on preventive grounds?
A.v.H. Yes, and if you do it that way, then it is not quite desert, it’s a deviation from it, but provided that it is mainly based on desert, then it is something that should be permissible, depending of course on how strict you want to be on desert.
G.G. Over the last years there has been a lot of discussion concerning the integration of several sanction theories. Some of them are criminological theories and others normative theories. For example, Braithwaite claims that his theory of “reintegrative shame” is an integrated theory. Do you think that a satisfying level of coherence could be accomplished through the proposal of integrated sanction theories?
A.v.H. I think the answer is ‘somewhat’. We discuss the problem of coherence with Ashworth and Shearing in the second chapter of the book Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms?, 2003. We propose there that a ‘making amends’ model could work as a model for a specified range of cases, within the broader framework of a proportionality-orientated sentencing system. Above all – of course, you can mix theories – you have to be sure that first of all they are mixed consistently, and secondly that the result fits some sort of recognizable and defensible theory.
G.G. Ιn your justification of punishment there is not exactly an integration, but a combination of censure and a prudential reason to desist from crime. Could you please explain what exactly this prudential reason is?
A.v.H. A prudential reason is something that one does not because it’s right but because it’s prudent.
G.G. Then it’s not a moral reason.
A.v.H. No it isn’t, it’s a reason based on self-interest. If you are asking ‘why punish at all?’, then the reasons are based on censure and prevention in terms of Androhungsprävention.
G.G. How would we translate the German term Androhungsprävention into English?
A.v.H. There is no proper English word.
G.G. ‘Deterrence’ maybe?
A.v.H. It is a kind of deterrence. Androhungsprävention is when I tell you ‘don’t do it ,or else!’ On the other hand, if I don’t say anything to you, but people who do it get shot, that may make me think I shouldn’t do it, I shouldn’t get shot, but of course nobody has shot me with anything.
G.G. From a criminological point of view, Androhungsprävention and deterrence are related to traditional criminology. Are there any elements of critical criminology that could be useful for a desert system? The labeling theory maybe?
A.v.H. The answer is, provided that labeling theory is true, because this is not certain at all, it could be used as a reason for setting the anchoring points of the penalty scale, for defining cardinal proportionality.
G.G. The last question is about Greece. Which could be considered to be the most important condition for a successful application of a desert-orientated model in our country?
A.v.H. Well, in Greece now you have a political problem. One of the premises of just desert, if you take it seriously, is moderate punishment. Therefore, if you try to implement it in a place where they want to make mincemeat of all offenders, then just don’t try it there. It depends on what the political climate is, because you have to get it through the legislators. There was a discussion once, let’s do a sentencing commission and apply just deserts in Indiana, which is a conservative state. The answer I gave was ‘don’t’, because it’s going to be monstrous.
G.G. Dear Professor v. Hirsch, thank you so much for this comprehensive interview. It has been an honor and pleasure talking with you about all these interesting topics.
A.v.H. Thank you very much too.